Delhi District Court
Shri Ram Kishore Sharma Prop M/S R K ... vs The Executive Engineer E And M W And S Cn ... on 22 November, 2024
IN THE COURT OF SH. ANIL KUMAR SISODIA DISTRICT
JUDGE (COMMERCIAL COURT)-04,CENTRAL, TIS HAZARI
COURTS, DELHI
CS (Comm.) No.1151/2023
SHRI RAM KISHORE SHARMA PROP.
M/s R K Electricals
D-841, Gali No. 20,
Bhajan Pura, Delhi-110053 ...PLAINTIFF
Versus
THE EXECUTIVE ENGINEER
(E&M)W&S CN
DELHI JAL BOARD: GNCTD
Kanhiya Nagar, Delhi-110032
The ACE(M)-5
Delhi Jal Board
Room No. 312 Varunalaya
Jhandewalan, Karol Bagh,
New Delhi-110005
....DEFENDANT
Date of filing of the suit : 10.08.2023
Date of reserving judgment : 11.11.2024
Date of judgment : 22.11.2024
Judgment
1.This is a suit filed by the plaintiff for recovery of Rs.9,09,462/- (Rupees Nine Lakh Nine Thousand Four Hundred Sixty Two only) along with pendente-lite and future interest against ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:25:47 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 1/22 the defendant.
Plaintiff's case
2. The plaintiff is registered Contractor engaged in the business of electrical contracts. The defendant had invited the notice inviting tender (NIT) and had awarded the work of "Deployment of skilled, semi-skilled and unskilled labour for E & M installations at Sanjay Gandhi Transport Nagar BPS in Badli Constituency" to Plaintiff to be done for value of Rs. 7,10,050/- vide LOI no. 7624 dated 11.03.2021 with date of start and completion as 12.03.2021 till 09.07.2021. The defendant thereafter had issued work order no. 179 dated 20.03.2021 for period of 120 days. The plaintiff deposited an amount of Rs. 22,000/- in the shape of FDR no. 008689 dated 17.03.2021 with defendant no. 1 vide letter dated 17.03.2021 and Rs. 7,000/- vide FDR no. 008699 dated 19.03.2021 towards performance guarantee for this work in pursuance to letter dated 11.03.2021 from the defendant no. 1.
3. It is stated that the work was actually completed on 09.07.2021. The defendant had accepted the work as well as completion of work as 09.07.2021. The plaintiff has submitted the bill for value of Rs. 7,10,050/- with defendant no. 1 vide diary no. 1707 dated 16.08.2021 along with registers maintained at Booster Pump and ESI and EPF details for the persons deployed at site in Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:25:53 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 2/22 term of LOI, the same was duly signed by Engineers from time to time with defendant no. 1. It is further stated that plaintiff had completed the work but the defendant had failed to release the payment for the site persons employed at site in terms of LOI and also not released the FDR for Rs. 29,000/- deposited towards performance guarantee for which the plaintiff had preferred the present suit. Plaintiff had requested the defendant vide several letters for release of payment and also served final legal notice for release the balance payment of Rs. 7,10,050/- along with interest and notice charges of Rs. 5000/- vide letters dated 09.06.2022 and 19.09.2022 and through email dated 10.06.2022 and 19.09.2022 and legal notice dated 22.12.2022 was served on the defendant. It is stated that principle amount towards payment for deployment of labour was Rs. 7,10,050/- and interest as above comes to Rs. 1,70,412 till filing of the present suit and further amount of FDR for Rs. 22,000/-, hence total amount claimed in this suit comes to Rs. 9,09,462/- as claimed along with pendente-lite and future interest @ 12% p.a and cost of the present suit.
4. The plaintiff has prayed for a decree of Rs. 9,09,462/- along with interest @ 12% p.a both pendente lite and future period till realization of the whole of decreetal amount including refund of FDR of Rs. 29,000/- along with interest as accrued on it against the defendant.
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2024.11.22
SISODIA 15:26:01 +0530
CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 3/22
Defendant's case
5. The defendant was duly served with the summons of the suit. Defendant has contested the suit by filing the written statement. Defendant has taken preliminary submissions that defendants are employees with Delhi Jal Board which is a government agency responsible for supply of potable water to the National Capital Territory region of Delhi. It is stated that as per the records work of "Deployment of skilled, semi skilled and unskilled labour for E& M installations at Sanjay Gandhi Transport" was awarded to the plaintiff vide work order no. 179 dated 20.03.2021 for the value of Rs. 710050/-. Thereafter, parties executed contract agreement no. 162/2020-21 dated 22.03.2021 which specifically stated that parties shall be bound by the General conditions of Contract and other conditions as per notice inviting tender available on DJB website attached with the tender all of which formed an integral part of contract. As per the terms of the contract, following documents are binding on the parties and form an integral part of the contract between the parties:-
(i)Work Order no. 179 dated 20.03.2021;
(ii)General condition of Contract and other conditions available on DJB website;
(iii)Notice Inviting Tender;Digitally signed by
ANIL ANIL KUMAR
KUMAR SISODIA
Date: 2024.11.22
SISODIA 15:26:25 +0530
CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 4/22
(iv) Indemnity Bond dated 20.03.2021;
(v)Letter of intent no. 7624 dated 11.03.2021;
(vi)Copy of FDR no. 008689 dated 17.03.2021.
6. It is further stated in the WS that as per the work order, the work was to commence on 12.03.2021 and the plaintiff was directed to submit documents and details of the labour to be deployed at site. However, the plaintiff neither started the work on time nor submitted the requisite detail in time. Three separate e-mails dated 18.03.2021, 19.03.2021, 20.03.2021, 23.03.2021, 25.03.2021, 26.03.2021, letter dated 04.06.2021 were sent to plaintiff directing it to commence work. Plaintiff was also directed to commence the work as per the work order by various letters/emails. Thereafter, plaintiff failed to complete the work as per the specification of the work order. It is further stated that several inspections were made by the concerned engineers of the defendant, many discrepancies were found at site, namely, the number of persons deployed by the plaintiff at site were not as per the work order. The log entries submitted by the plaintiff with respect to labour deployed had several inconsistencies and contradictions and inadequate labour deployment etc. It is stated that the suit of the plaintiff is liable to dismissed as the plaintiff has not come to court with clean hands. The plaintiff falsified it log entries and used signatures of same person to act on behalf of other labour which was contrary to the terms of the contract. Further the plaintiff Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date:
SISODIA 2024.11.22 15:26:31 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 5/22 failed to submitted educational qualifications and experience certificate and ESI/EPF related particulars of the labour deployed and failed to complete the work as envisaged in work order on account of inadequate labour deployment and gross delay. It is further stated that as per the terms of the Work Order, plaintiff was obligated to give a certificate to the Engineer in Charge upto 10 th of every month that the payment to the labour/worker was made as per minimum wages act, however the plaintiff failed to do so. It is stated that plaintiff failed to execute the work order and was in fundamental breach of the terms of the contract by not providing relevant particulars of its labour and not deputing adequate labour on the work site. The defendants were forced to make alternative arrangements at extract cost and depute additional resources to make cover the lapses and delays occasioned by the plaintiff.
On merits, the contents of the plaint have been denied except the fact that plaintiff was awarded work order no.179. It is denied that the plaintiff completed the work in the stipulated time. All other contents of the plaint were denied and prayer has been made for dismissal of the plaint.
7. Plaintiff has filed replication to the written statement of the defendant and has reiterated the contents of the plaint.
Issues
8. After completion of pleadings, following issues were framed ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:26:39 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 6/22 on 06.04.2024:-
(i)Whether the plaintiff has failed to complete the work as per the specification of work order no. 179 dated 20.03.2021?OPD
(ii)Whether the plaintiff is entitled for the recovery of the suit amount as prayed for?OPP
(iii)Whether the plaintiff is entitled for refund of the amount of FDR of Rs. 22,000/- and Rs.
7,000/- deposited as performance guarantee with the defendant?OPP
(iv)Whether the plaintiff is entitled for interest on the suit amount, if so, at what rate and for which period?OPP
(v)Relief Plaintiff's Evidence
9. Plaintiff examined AR of plaintiff Sh. Ram Kishore as PW-
1. PW-1 filed affidavit by way of evidence Ex.PW-1/A and relied upon the following documents:-
Sr. No. Documents Exhibits 1 Documents Ex. PW1/1 (OSR) 2 Copy of letter of work order dated Ex.PW1/2 20.03.2021 (colly) (OSR) Digitally signed ANIL by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:26:48 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 7/22 3 Copy of letter dated 17.03.2021 submitting Ex.PW1/3
FDR for performance guarantee alongwith FDR 4 Submission of bill dated 16.08.2021 vide Ex.PW1/4 diary no. 1707 dated 16.08.2021 (colly) (OSR) 5 Log book Ex.PW1/5 (colly) (OSR) 6 ESI and EPF Challans and bank statement Ex.PW1/6 (Colly) (OSR) 7 Letters and Legal Notice Ex.PW1/7 Defendant's Evidence
10. Defendant has examined Sh. Pardeep Kumar EE (E&M), M-4, Mukherjee Nagar, Delhi as DW1, who tendered his affidavit Ex.DW1/A and relied upon the following documents:-
Sr. Documents Exhibits
No.
1 Copy of work order and documents forming Ex. DW-1/1
part of contract between the parties (Page no. (colly) 19 to 39 and 39-A to 39-O) 2 Copy of email/letter dated 18.03.2021, Ex. DW-1/2 19.03.2021, 20.03.2021, 23.03.2021, (colly) 25.03.2021, 26.03.2021, 04.06.2021 (Page No. 40 to 45) 3 Copy of record of inspection details (Page No. Mark A 46 to 48) 4 Certificate u/s 65-B of Indian Evidence Act Ex. DW-1/3 Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:26:56 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 8/22
11. I have heard Ld. counsel for the plaintiff and Ld. counsel for the defendant and perused the written submissions filed by the defendant and the judicial record carefully.
12. Issue wise findings on the basis of evidence and arguments are as under: -
FINDINGS Issue no.1.
Whether the plaintiff has failed to complete the work as per the specification of work order no. 179 dated 20.03.2021?OPD
13. The onus of proving this issue has been cast on the defendant. Counsel for the defendant has argued that plaintiff was required to ensure efficient and smooth running of booster pumping station including maintenance and upkeep of the station in three separate shifts every day. It was further argued that the persons had to be deployed shift wise and under no circumstances could the workers be deployed beyond 8 hours shift in a day. It was argued that plaintiff failed to perform as per the terms of the work order and deployed grossly inadequate labor at site. It was further argued that the plaintiff was required to furnish list of workers deployed on each site with names and addresses within 2 days but the plaintiff failed to provide the same. The plaintiff was further required to ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:27:03 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 9/22 provide list of workers along with their ESI details, age proof, educational qualifications, technical qualifications etc. but the plaintiff failed to comply with the same. The plaintiff further failed to supply certificate with respect to the payment of the workers as per the Minimum Wages Act despite requests from the department. Counsel for the defendant also argued that plaintiff failed to commence the work from 12.03.2021 despite letters dated 18.03.2021, 19.03.2021 and 20.03.2021 issued by the defendant to commence the work and provide complete details. The plaintiff manipulated the log books for 12.03.2021 to 20.03.2021 and wrongly showed the deployment of the labor. It was also submitted that as per the inspection dated 25.03.2021 it was found that staff as recorded by the plaintiff was not present at shift A and only 4 staff members are present at the site, whose shift timing and particulars were wrongly recorded. It was further found that those four persons had stated at the site for entire night and none of them was skilled worker which is in complete violation of the work order. The plaintiff vide letter dated 25.03.2021 inform the plaintiff about the gross lapses. It was further argued that as per the inspection dated 23.04.2021 there were gross discrepancies were found in the log entries and actual labor deployment and it was found that same worker was performing three shifts in complete violation of the terms of the work order. She further argued that as per the inspection report dated 04.06.2021 the defendant found Digitally signed ANIL by ANIL KUMAR SISODIA KUMAR Date:
SISODIA 2024.11.22 15:27:10 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 10/22 gross under deployment of labor on site and wrong entries reflecting in the log book and as per the inspection dated 13.06.2021 the defendant firm only 50% of the staff deployed on the site and wrong entries made in the log book. Ld. Counsel for the defendant argued that the plaintiff in order to hide its lapses and wrong doings, manipulating the entries in the log book and show false deployment of labor and thus the plaintiff did not perform the work as per the specifications of the work order no.179 dated 20.03.2021. Ld. Counsel for the defendant has also placed reliance on the judgment of Hon'ble Supreme Court in Vidarbha Irrigation Development Corp. Vs. M/s. Anoj Kumar Garwala, Civil Appeal no.1049/2019 decided on 23.01.2019 to argue that the words used in the tender documents cannot be ignored or treated as redundant or superfluous and they must be given meaning and there necessary significance.
14. Per contra, counsel for the plaintiff has argued that there is no dispute with regard to the fact that the contract was awarded to the plaintiff and letter of intend dated 11.03.2024 was issued to the plaintiff and work order was issued on 20.03.2024. It was argued that the plaintiff deployed the labor at the site w.e.f. 12.03.2021 and maintained the log book which was inspected by the officials of the defendant from time to time. It was further argued that the log book maintained by the defendant was not signed by the ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:27:17 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 11/22 officials of the defendant on each and every day. It was argued that log book dated 23.03.2024 and 16.06.2024 was inspected by the Jr. Engineer and the site was found to be OK. As regards the discrepancies noticed by the officials of the defendant in the inspection dated 25.03.2024, 23.04.2021, 04.06.2021 and 13.06.2021, counsel for the plaintiff has argued that the defendant never issued any show cause notice to the plaintiff at any point of time during the subsistence of the contract or even thereafter and thereby has condoned the lapses/discrepancies. As regards the objections raised by the defendant that plaintiff failed to supply the educational and technical qualifications of the workers deployed at the site, it was argued that the plaintiff had submitted all the relevant documents along with the attendance register and ESI and EPF documents vide letter dated 09.06.2022 which was served upon the defendant through email dated 10.06.2022 but the defendant failed to release the bill to the plaintiff.
15. Perusal of the testimony of DW-1, Sh. Pradeep Kumar assumes significance in regard to the objections raised by the defendant. DW-1 in para 7 and 8 of his affidavit by way of evidence Ex.DW-1/A has deposed that plaintiff neither started the work on time nor submitted the requisite details in time and the plaintiff failed to complete the work as per the specifications of the work order. He further deposed that several discrepancies were ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:27:24 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 12/22 fond at the site and the log entries were falsified by the plaintiff and plaintiff failed to submit education qualifications and experience certificates and ESI and EPF particulars of the labor and failed to complete the work. He also proved the letters/email dated 18.03.2021, 19.03.2021, 20.03.2021, 23.03.2021, 25.03.2021, 26.03.2021 and 04.06.2021 as DW-1/2 (colly).
16. However, during his cross examination DW-1 admitted that the work order no.179 was not terminated and work was not awarded to any contractor at any point of time. He further deposed that there were no complaints from the residents regarding the non supply of water or non operation of the pump. He further admitted that there is no evidence that Delhi Jal Board had operated the Booster pumping station by deploying his own labor. He further admitted that there was no extension of work order as per the available records. He further submitted that email address at point A and B mentioned on Ex.PW-1/6 are of the defendant's office and as per the records the plaintiff had started the work from 23.03.2021 and completed the same on 09.07.2021. The aforesaid admissions by DW-1 clearly established that the plaintiff had completed the work order and the defence raised by the defendant that the plaintiff failed to complete the work order is baseless.
17. As regards the manipulation in the log books DW-1 Digitally signed ANIL by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:27:32 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 13/22 admitted in his cross examination that no document has been filed on record to show that the plaintiff had got the log book signed in advance from the labor and volunteered that it finds mentioned in the inspection report. However, he further admitted that no complaint was lodged before the police for manipulating the log sheets and no action was taken against the plaintiff in respect of fudging of the log sheets. He also admitted that the persons whose signatures were fudged/forged were not verified. Hence, from the testimony of this witness, it is apparent that there is no evidence of manipulation or fudging in the log sheets as submitted by the defendant in the WS.
18. PW-1 in his cross examination has admitted that plaintiff was required to furnish the details of ESI and EPF deposits, educational qualification of their labor and their phone numbers to the defendant and volunteered that plaintiff had provided the same to the defendant on 16.08.2021 vide diary no.1707 dated 16.08.2021. The copy of the bill has been proved by PW-1 as Ex.PW-1/3 which bears the stamp of the officials of the defendant. Plaintiff has also placed on record the letter dated 09.06.2022 and
19.02.2022 Ex.PW-1/6(colly) which was duly served on the defendant through email. It is pertinent to note here that DW-1 in his cross examination has admitted that the email mentioned in these letters is of the defendant. DW-1 has also admitted in his Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date:
SISODIA 2024.11.22 15:27:39 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 14/22 cross examination that the bill Ex.PW-1/3 submitted by the plaintiff to the defendant is not traceable in their office and as per record no reply was given to the bill Ex.PW-1/3. It is surprising as to why defendant kept mum and did not inform the plaintiff, if complete documents were not supplied by the plaintiff along with the bill Ex.PW-1/3. It is also surprising that even after filing of the suit, department did not take any steps to trace out the bill submitted by the plaintiff nor any request was made to the plaintiff to submit duplicate bill, if the original bill submitted by the plaintiff is not traceable.
19. In view of the aforesaid facts and circumstances, once it is admitted by the defendant that the work was completed by the plaintiff and no complaints were received either from the residents or from any labor or department of ESI and EPF regarding non deposit of the contribution by the plaintiff, the preponderance of probability lies strongly in favour of the plaintiff and against the defendant. Plaintiff has already proved on record the log book Ex.PW-1/4 for the period 12.03.2021 to 09.07.2021 which establish that the plaintiff has deployed the labor and completed the work as per the terms and conditions of the tender. Hence, some discrepancies in the number of labors on some particular days when the officials of defendant inspected the site can not be a basis to deny the payment to the plaintiff. Defendant has failed to ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:27:47 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 15/22 prove the manipulation or forgery in the log sheets and therefore, the same have to do taken as correct as per the records.
20. As far as non submission of educational qualifications of the labor deployed by the plaintiff, the plaintiff can be directed to supply the necessary documents to the defendant along with the bill Ex.PW-1/3 (which has gone missing from the office of the defendant), so that the defendant can process the bill of the plaintiff.
21. In view of the aforesaid discussion, I am of the considered opinion that the defendant has failed to discharge the onus cast on it. The issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue no.2.
Whether the plaintiff is entitled for the recovery of the suit amount as prayed for? OPD
22. The onus of proving this issue was cast on the plaintiff. Plaintiff has already proved on record the log book Ex.PW-1/4 for the period 12.03.2021 to 09.07.2021 which established that the plaintiff has deployed the labor and completed the work as per the terms and conditions of the tender. The plaintiff has also proved on ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:27:55 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 16/22 record the ESI and EPF challan and bank statement Ex.PW-1/5 (colly) which establish that plaintiff had deposited the ESI and EPF of the labor with the department.
23. DW-1 Pradeep Kumar in his cross examination had admitted that as per record, there were no complaints from the residents of locality regarding non supply of water or non operation of the pump. He further admitted that as per record there is no evidence that Delhi Jal Board had operated the Booster Pumping station by deploying its own labor. He admitted that no notice was received by the department from ESI and EPF department regarding non payment of ESI and EPF by the plaintiff for their employees working in this work order. He also admitted that no document has been filed by the defendant to show that the plaintiff had not deposited ESI, EPF of the labor deployed at the site and the defendant did not receive any complaint of any labor regarding the less payment/non payment of the salary or non deposit of ESI and EPF in their account. He further admitted that the bill Ex.PW-1/3 submitted by the plaintiff is not traceable in their department.
24. From the aforesaid evidence, the plaintiff has established that he has completed the work and is entitled for the bill amount as claimed by him. The issue is accordingly decided in favour of the plaintiff and against the defendant. The plaintiff shall submit the bill Ex.PW-1/3 along with all the relevant documents with the Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:28:03 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 17/22 defendant and the defendant shall process the bill and make the payment within 30 days from the date of judgment. The issue stands disposed off accordingly.
Issue no.3.
Whether the plaintiff is entitled for refund of the amount of FDR of Rs.22,000/- and Rs.7,000/- deposited as performance guarantee with the defendant?OPD
25. Onus of proving this issue has been cast on the plaintiff. In view of the findings on issues no.1 and 2 and the fact that the work order no.179 was completed by the plaintiff on 09.07.2021, the plaintiff is entitled for refund of the amount of FDR of Rs.22,000/- and Rs.7000/- deposited as performance guarantee with the defendant. The issue stands disposed off accordingly.
Issue no.4.
Whether the plaintiff is entitled for interest on the suit amount, if so, at what rate and for which period?(OPP)
26. The plaintiff has claimed pendente lite and future interest @ 18% per annum. I do not find any strength in the submissions made by Ld. Counsel for the defendants. In the case of Varinder Jeet Singh Vs. Municipal Corporation of Delhi & Anr., 2013 (134) DRJ 284, Hon'ble Ms. Justice Hima Kohli interalia held ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:28:12 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 18/22 that :-
"15. It is settled law that if a person is deprived of the use of money to which he is legitimately entitled, he has a right to be monetarily compensated for the said deprivation. [Ref: (1992) 1 SCC 508:
Secretary, Irrigation Deptt. Govt. of Orissa v. G.C. Roy; (2004) 5 SCC 65 : Ghaziabad Development Authority v. Balbir Singh, and (2009) 8 SCC 507 : Sri Venkateswara Syndicate v. Oriental Insurance Company Ltd. and Anr.] The object behind awarding interest to a party, who has suffered loss, due to a legitimate deprivation of the enjoyment of the use of money that he was entitled to rightfully, is to balance the equities and while doing so, the facts involved in each case must be examined by the Court.
16. The statutory provisions with regard to payment of interest are laid down in Section 3 of the Interest Act, 1978, that provides that in any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, if the proceedings do not relate to a debt payable by virtue of a written instrument at a certain time, from the date mentioned in Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:28:22 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 19/22 this regard in a written notice given by the person entitled or the person making the claim to the person liable, then interest will be claimed, till the date of institution of the proceedings."
27. Reliance is also placed upon the case of NDMC & Others Vs. Shish Pal MANU/DE/1200/2018 wherein it was observed,
45. In the present case, the combined effect of the Clauses and the Circular and amendments, set out above, is that if the Corporation does not procure funds, it is not liable to even pay the Contractor any interest and the Contractor has no remedy. This by itself would mean that such a Clause could be read as leading to a contract without consideration and hence unlawful under Section 23 of the Contract Act. The Corporation being an instrumentality of State, such a contract would also be opposed to public policy under Section 23 of the Contract Act. Section 46 of the Contract Act is also clear that if no time for performance of a contract is specified, it has to be performed within a reasonable time. Reading these provisions together, it is clear that an open ended Clause which in effect says that the payment shall be made at an undetermined time in the future, subject to availability of funds, in a particular head of accounts is wholly unreasonable and such a term would also be unfair.....
71. A conjoint reading of Clauses 7 & 9 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 20/22 along with the amendment dated 19th May, 2006, clearly shows that for the payment of bills, the Contractors have to follow the queue basis and as and when the amount is available under the particular head of account, the amount would be payable.
The amendment does not, however, have a condition that no interest is payable for delayed payment. Such a condition exists only in Clause 7. Clause 9, therefore, when read with the amendment has to mean that the Corporation itself considers 6 months and 9 months to be the reasonable periods for which the payments of the final bills can be held back. Obviously, therefore, if payments are made, whether on a queue basis or otherwise, beyond the period of 6 months and 9 months, interest is payable.
72. In view of the question of interest having been gone into detail and non-
payment having been held to be illegal by various Single Judges of this Court, in cases involving the Corporations, it is held that non-payment of interest beyond the period of 6 months and 9 months, as stipulated in Clause 9 of the General Conditions of Contract, would be contrary to law. Hence, the Contractors are entitled for payment of interest after a period of 6 months - 9 months respectively.
28. The award of interest is discretionary as the contract nowhere mentions about the rate of interest, each case has to be adjudged on its own merit. This court is not inclined to grant pre ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2024.11.22 SISODIA 15:28:32 +0530 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 21/22 suit interest.
29. In the facts and circumstances, I am of the view that the interest of justice would be subserved if the plaintiff is awarded simple interest @ 9% per annum on the amount of Rs.9,09,462/- from 16.04.2022 till its realization. Issue is accordingly decided in favour of the plaintiff and against the defendants.
Relief
30. In view of my findings on the aforesaid issues, the suit is decreed in favour of the plaintiff and against the defendants for a sum of Rs.7,39,050/-. The plaintiff shall also be entitled to simple interest @ 9% per annum from the date 16.04.2022 till its realization. The plaintiff shall submit the bill Ex.PW-1/3 along with all the relevant documents with the defendant and the defendant shall process the bill and make the payment within 30 days from the date of judgment. The plaintiff shall also be entitled to the cost of the suit.
Decree sheet be prepared accordingly. File be consigned to Record Room after due Digitally signed by ANIL compliance.
ANIL KUMAR
KUMAR SISODIA
Date: 2024.11.22
SISODIA 15:28:40 +0530
(ANIL KUMAR SISODIA)
District Judge(Commercial Court)-04 Central/Delhi Announced in open court on 22.11.2024 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 22/22 CS (COMM) NO. 1151/2023 Shri Ram Kishore Sharma Vs The Executive Engineer, D.J.B. Page No 23/22